Gun rights or states’ rights?

posted at 12:45 pm on November 16, 2011 by Ed Morrissey

Here’s a conundrum for limited-government conservatives. Should the federal government dictate reciprocity on firearm carry permits to states as part of its authority under the Commerce Clause and the incorporation view of the Second Amendment? Or should states have the sovereignty to decide on reciprocity for carry permits as a function of federalism and states’ rights? A vote today in the House may test conservatives on this question:

If congressional gun-rights stalwarts get their way, a firearms owner with a concealed-weapons permit issued in Utah could be allowed to carry that gun in New York — regardless of the gun laws in the Empire State.

But as the House prepares to vote on a bill Wednesday that would allow that and please a core GOP constituency, critics are throwing another core Republican belief back at the party: states’ rights.

GOP backers of the National Right-to-Carry Reciprocity Act — which would allow those with a concealed-weapons permit in one state to carry their firearms elsewhere as long as that state also allows concealed carrying — say they don’t see that as an issue.

“It’s kind of like having a driver’s license,” said Rep. Trent Franks (R-Ariz.), a vocal supporter of the bill who penned an op-ed in USA Today this week on the measure. “There are some states that have stricter driving laws than others.”

But their opponents — including one prominent Republican — are crying foul over the measure, arguing that the bill goes against the Republican Party’s core belief in states’ rights.

This isn’t an academic question for thousands of carry permit holders. The rules on reciprocity are confusing, even with a great resource like USACarry and its interactive reciprocity map. My resident permit in Minnesota allows me full reciprocity in about half of the nation, including the newly-arrived state of Wisconsin, but leaves out a number of other states — like my native California, for instance, Washington DC, or even gun-friendly states like Texas and Florida. And what the heck is wrong with North Dakota, too?

For permit holders like myself, the ability to travel with my pistol into other states without having to worry about reciprocity issues would be helpful indeed. But that doesn’t address other fundamental issues involved, such as the ability of states to set their own rules for permit issuance and carrying. Some states, like Minnesota, require a certain amount of training to get a permit, while others do not. Should Minnesotans be forced by the federal government to have non-residents carrying in the state under less-restrictive conditions than their own citizens have to address? For that matter, should Minnesotans have the right to carry in Illinois while the state forbids its own residents to do so, even apart from the question of whether Illinois’ policy is intelligent? (Let’s just stipulate that it’s idiotic, but also that Illinois voters don’t seem to be in a rush to correct it, either.)

It’s a tough question. The existing level of reciprocity indicates to me that the issue may not really need federal intervention in the first place, and that the proper limited-government perspective should be to keep the federal government out of it. However, the “full faith and credit” clause gets used to validate a number of permits and licenses across state lines, including for marriage and driving, so it’s not unprecedented, either — although conservatives used DOMA to block such forced recognition of same-sex marriages. To some extent, it’s a moot point in this Congress as there is little chance of this bill succeeding in the Democrat-controlled Senate, and about zero chance of getting Barack Obama’s signature. However, it will likely come up in the next Congress, when a more friendly Senate and White House may well impose full reciprocity on the states.

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I was wondering when this would come up. A real conundrum for those who support state’s rights (righty’s) and those who support federal intervention (lefty’s). Too bad it will never go anywhere under this administration.

My resident permit in Minnesota allows me full reciprocity in about half of the nation, including the newly-arrived state of Wisconsin, but leaves out a number of other states — like my native California, for instance, Washington DC, or even gun-friendly states like Texas and Florida.

California gives permits only to the rich and the political, so it shouldn’t be a big shocker that they don’t welcome out-of-state carriers. And Washington DC had a total handgun ban until just a couple of years ago…same thing. As to Texas, they’ll toss you in the can just for printing, and Florida doesn’t allow open carry. The states you listed, while some of them may be considered conservative, have plenty of nuances to their gun laws.

It depends on whether a given state allows non-residents to obtain concealed carry permits. States which allow residents to obtain cc permits, but won’t let non-residents do so (California is one), should be required to honor the cc permits of other states. This is definitely a constitutional issue involving the 14th Amendment’s equal protection requirements. States simply cannot deny non-residents concealed carry permits if they issue those to residents.

The price of a state not being required to honor the concealed carry permits of other states should be a procedure which allows non-residents to obtain concealed carry permits.

Not a 2nd Amendment issue at all. It’s not the right to own that’s being questioned, it’s a concealed carry permit. Back to states’ rights to set conditions for concealed carry.
Just my humble opinion.

The whole idea behind a national government was that laws would be uniform, and uniformly enforced everywhere. No special requirements for autos in California, or special insurance policies, or restrictions on who can sell insurance across state lines, or . . .

I had to go with states rights to deny because I don’t like opening more doors to the federal government. I get to carry in my state and that is the bigger concern. If it ever got to the point where the country was threatened enough to need me to carry across state lines, that states laws wouldn’t stop me. I took my weapons when I traveled from Idaho to Fort Campbell. The only state I had to worry about was Illinois and I just kept the ammo separate from my weapons while traveling through it.

If we are going to incorporate the entire Bill of Rights, then we incorporate the entire Bill of Rights. Reciprocity is a no brainer when viewed through that lens. We respect drivers licenses from other states because we cannot hinder individuals freedom of movement as a matter of constitutional freedoms. Why are gun rights any different?

10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Pretty clear to me. The Constitution speaks of the right to bear arms so a state’s 10th Amendment rights are restricted in this area.

SCOTUS has ruled it to be a basic right held by an individual, same as their various First Amendment rights and various criminal and civil protections. All of these have been incorporated to include limitations on the authority of the Several States.

Not a 2nd Amendment issue at all. It’s not the right to own that’s being questioned, it’s a concealed carry permit. Back to states’ rights to set conditions for concealed carry.
Just my humble opinion.

JayVee on November 16, 2011 at 1:02 PM

But doesn’t the 2nd amendment say that you have the right to keep and bear arms?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I don’t think Congress should force concealed carry on states. The 2nd Amendment protects the right to keep and bear arms, it does not guarantee the right to carry a concealed weapon in public. I support concealed carry, but permitting (or rather, enforcing bans on) concealed carry is a decision reserved to the people of a state. So long as they stay within constitutional limits, gun regulations are lawful exercises of state police power. If you don’t like gun laws in your state, vote with your feet and come down South where we have very generous reciprocity laws.

Tough call that. As I read the constitution(and how I voted up top)it falls under “incorporation”, however… in the grand scheme of things I’d be inclined, we’re I a congressman, to vote the other way. I just think there is too much to gained in reaffirming the 10th on a broad array of issues. From Obamacare to the sanctity of the 2nd itself, all it takes is a Scalia or Thomas to suddenly meet an untimely demise and a reinterpetation of the 2nd could render all firearms in private hands across the illegal. We’re that to occur we’d be truly screwed and statists, without fear of any meaningful way of resistance, would be free to run rampant over any liberties they choose. I truly beleive we’re it but for the 2nd our cherished Republic would be a long past footnote in the history books long ago.

Always must we keep the bigger picture in frame, something the statists been quite accompolished at, and focus on the long war and not merely the battle at hand.

Not a 2nd Amendment issue at all. It’s not the right to own that’s being questioned, it’s a concealed carry permit. Back to states’ rights to set conditions for concealed carry.
Just my humble opinion.

Not a 2nd Amendment issue at all. It’s not the right to own that’s being questioned, it’s a concealed carry permit. Back to states’ rights to set conditions for concealed carry.
Just my humble opinion.

JayVee on November 16, 2011 at 1:02 PM

When traveling, you cannot keep and bear arms if you don’t bring any with you.

I propose that we eliminate the Concealed Carry Permit as it is currently issued. Instead take the Voter ID Card and have a place on the back where a certified firearms instructor can affix a CCP endorsement.

Are there individual state restrictions/interpretations of the 1st Amendment?

I fully admit it probably isn’t as simple as that, but part of me says it ought to be.

DrAllecon on November 16, 2011 at 1:15 PM

Depends on what you might consider a restriction. For example, noise ordinances could be argued to be a restriction of our 1st Amendment rights. So called fire codes that limit the number of people allowed in a building at any one time.

Or, perhaps the Swiss have the proper idea, in that their “militia” is anyone who is a citizen, and thus have provided a full auto FN-FAL to every household. The Swiss is example also provides a handy mockery of just about every leftist arguement about how to reduce violent crime through gun control.

I’m not at all clear why this law is even needed. The full faith and credit clause ensures that my drivers license is honored in all fifty states. Liberals argue (correctly I think) that the defense of marriage act is unconstitutional because it violates the full faith and credit clause. So why aren’t concealed carry laws protected by the full faith and credit clause?

By the logic that dictates that “congress” means “school board” re: the First Amendment, yes. Or no.

By the logic that dictates that the federal govt can strike down the abortion laws of all sates, yes.

By the logic that impels a 5th grader to understand the 10th Amendment, no.

By the logic that recognizes we are endowed by our creator with certain unalienable rights, yes. The Supremes could force a state to lift restrictions on the press or religion based on the First Amendment, not to mention voting rights. How is it that the right to keep and bear arms is infringed freely by the states if it is a gift of God that was recognized as in force before the Bill of Rights was even written?

I go with yes, by incorporation. I don’t recall that I was stripped by due process of my right to pack heat in DE.

“I don’t think Congress should force concealed carry. The 2nd Amendment protects the right to keep and bear arms, it does not guarantee the right to carry a concealed weapon in public.”

Respectfully disagree. The plain language of the 2nd says “bear arms.” The 2nd clearly guarantees the right to carry concealed. The State can require certain things to do so, but they cannot (constitutionally” prohibit it. That is why Incorporation is the proper method to ensure that States are not depriving citizens of their god given rights. Doing so is not forcing concealed carry, it is prohibiting unconstitutional deprivation of right to bear arms.

Try getting a CC permit in MD. I know several retired cops with spotless records and all were denied.

Bevan on November 16, 2011 at 12:56 PM

Your friends should look at the Law Enforcement Officers Safety Act, 2004. It allows qualified retired law enforcement officers to carry a concealed firearm in any jurisdiction in the United States, regardless of any state or local law to the contrary.

Since I retired from law enforcement in California and moved to Maryland, the Maryland State Police had to process my application. It drove them crazy but there wasn’t anything they could do about it.

I don’t think Congress should force concealed carry on states. The 2nd Amendment protects the right to keep and bear arms, it does not guarantee the right to carry a concealed weapon in public.
Lawdawg86 on November 16, 2011 at 1:10 PM

So you’re saying Congress should force open carry? It’s pretty hard to bear arms without carrying them either open or concealed.

Try getting a CC permit in MD. I know several retired cops with spotless records and all were denied.

Bevan on November 16, 2011 at 12:56 PM

New Jersey and New York State are even worse, from what I hear.

I live in Delaware and have carry permits for DE and PA (where I spend a lot of time). DE was a little tricky, but to get a PA carry permit all I had to do was show them my DE permit, apply, and pay the fee (I think it was about $45).

Yes, it’s splitting hairs, but I imagine that’s how the court would rule on it.

Washington Nearsider on November 16, 2011 at 1:13 PM

The 2nd doesn’t actually say anything about Open or Concealed carry. It merely states that we all have the right to keep and bear arms. It is intentionally very broad about the “bearing” part. It makes no distinction about how one bears their arms, merely that they have a right to do so.

We wouldn’t even be HAVING this hair-splitting discussion about various clauses of the Constitution if the Gun grabbers hadn’t been so successful in spiking the courts with activists who simply lied and allowed states to start regulating guns in the first place.

ALL gun licensing schemes are Unconstitutional. We are afforded the right to keep and bear arms, PERIOD. No state can overrule that. It’s high time we returned to our Constitutional roots.

What is going on at the NRA? First, they pressure Republicans to pass H R 822, which unconstitutionally gives Eric Holder and the federal government expansive new powers to regulate and gradually restrict gun rights. Then, they randomly urge us to pass H R 2112, a “minibus” bill that increases federal spending and subsidies and likely will lead to more taxpayer-funded bailouts. Both votes are expected over the next few days. I will be voting no and no.

I would tend to agree. But common sense does play a role. I don’t view fire codes meant to keep people from making a building fall down around them to be a 1st Amendment violation. Telling me I must apply for a permit to speak my mind is a clear violation. Telling me that I must apply for a permit to disrupt traffic and people’s lives in general for a large gathering is not a violation.

This entire mess wouldn’t even be talked about if all guns in private hands were simply confiscated. Plus, no one in America would get murdered ever again.

Bishop on November 16, 2011 at 1:00 PM

…and the rest of your constitutional rights, property rights etc should be suppressed, confiscated and infringed upon too right? Oh wait, no you intellectually vacant socialists only want CERTAIN rights in the constitution now because it fits your world view. — too bad. If you want to live under this system, then move to London where your perfect world exists… Or wait, no not there either.

Yes which is why Kalifornia’s recent ruling banning open carry are grabage…becasue it is next to impossible to get a concealed carry (of course the criminals do that all the time. I can’t even make the bad guys hesitate by carrying an unloaded (as far as the bad guy knows) weapon openly. So while I am trying to get back to my vehicle and get my speed loader or magazine I will be murdered!!! What second amendment…without that last part AND BEAR we do not have a second amendment and we no longer live in a constitutional republic. we are merely a democracy headed toward anarchy…at which time nobody is going to stop me from carrying openly!

Apparently Columbia v. Heller did not address “whether Second Amendment rights protect gun owners from overreaching by state and local governments” -NYTimes. (Sorry to quote the rag)

Most people are not aware that due to a foolish ruling in antiquity, the 14th amendment had to slowly incorporate each Bill of Rights article piece by piece. Columbia v. Heller is among the last ones, but even then 4 of our liberal Supreme Court justices voted against your right to bear arms.

IMHO Any restrictions on arms in a public place is uncostitutional.
Guns on private property is a different issue.
The problem as I see it is , the liberals that are in the judiciary side of the government. They MAKE law instead of enforcing it.
They have no power to do so, yet they do it all the time.
I dont care if you want to have a 105MM howitzer in tow on your vehicle, I just want to be around when you send shells down range.
I will bring the food.

“It’s remarkably bold of the National Rifle Association to send out false and misleading messages regarding H R 822, an unconstitutional bill that improperly applies the Commerce Clause to concealed carry licensing. I would support legislation that gets the federal government out of the way of states that want to recognize other states’ concealed carry permits. In contrast, H R 822 will hurt gun rights by conceding broad new authority to the federal government to override state sovereignty.

Gun rights advocates have fought hard to prevent liberal abuse of the Commerce Clause that would restrict gun rights. As an Endowment Life Member of the NRA and a Representative of individuals who believe deeply in the right to keep and bear arms, I am disappointed that the NRA has decided to put its own interests ahead of the interests of gun owners. Fortunately, many other gun rights groups rightly oppose H R 822.”

Further idiocy. Forget my Glock 23, just take the magazines. I own the “real” mags – the ones that hold 13 rounds. In PA where I live, they’re worth about $20 each. Next door in NJ, the state of my birth, the same mags are worth a felony conviction.

If one is going to support Section 2 of DOMA (interesting that little or none of the DOMA litigation questions Sec. 2) – no state having to recognize a same-sex marriage from another state – then you also have to accept that Congress can by law require states to honor other states’ CCW permits.

The 2nd sentence of Article IV, Section 1 is every bit as important as the first. “Full faith and credit” means what the Congress wants it to mean, and that is completely Constitutional.

If you have the right to keep and bear arms, you must be able to actually bear arms on your person. If a State wishes to make concealed carry conditional, then open carry must be unconditional: the right to bear arms is perfect. Both cannot be made conditional as that is an infringement upon the perfect right. Do note the 2nd Amendment does not speak of just the federal government: the right to keep and bear arms is an absolute and may not be infringed.

I like the incorporation argument as it puts the Nation on a step towards full incorporation of the 2nd Amendment.

On the infringement side…why do you need a federal license to sell a legal product in the first place? Alcohol must get a tax stamp, but that is not the same as requiring a license. Tobacco gets taxed, but the use thereof is not guaranteed not to be infringed. Only antiques are exempted save for automatic weapons… and the automatic weapons part was added as a last minute amendment to another bill in 1976, and since there was not bloody mayhem on the streets one wonders why that was put in place… for a Constitution guaranteeing that a right may not be infringed, it has been at all levels during the 20th century in this Nation. And now when the right is disrespected by many arms of the federal government doing far worse than any legal seller has ever done, why, exactly, is the federal government not exposed to the exact, same penalties it has put in place for private individuals? Oh, thats right… those that are allowed to stop others are to get away with those very things they are meant to stop…

I am a strong 2nd amendment supporter. That said, I dont like the idea of the federal governmenr imposing it’s will on the states in this matter. It should be up to the citizens of that particular state to offer reciprocity. That is why we are USA and not just A.

And now when the right is disrespected by many arms of the federal government doing far worse than any legal seller has ever done, why, exactly, is the federal government not exposed to the exact, same penalties it has put in place for private individuals? Oh, thats right… those that are allowed to stop others are to get away with those very things they are meant to stop…

I’d say NotCoach pretty much nailed this one. As a general rule, if the Constitution does not specifically delegate a power to the feds, they shouldn’t be wielding it. Period – the Tenth Amendment is pretty direct on that topic. Education comes to mind fairly quickly. So does environmental regulation. And from the opposite meaning, so does defense.

However, the Second Amendment is a national right that is spelled out in the Constitution itself. And therefore in this case, I would say that the feds have the power to force the states to comply. Using the Left’s own logic, if states cannot enforce immigration since that is a federal power, then states cannot regulate guns either. And the Constitution specifically forbids the feds from infringing on citizens’ rights to bear arms. So this would be a legitimate use of federal power, I’d say. And the reverse ( the Left trying to use this to take away citizens’ rights to keep and bear arms) would not be true because of the Constitution’s 2nd Amendment protections. And yeah, I know that the courts will do their best to find a way to take this right away, but the 2nd Amendment is pretty plain. Even someone like Ginsberg would have a hard time justifying that one.

Maybe I’m too patient. Waiting around airports the last twenty years will do that.
We just got Heller and McDonald. Give the states some time on reciprocity. That Wisconsin started with 25 correspondents is a great start. It’s the fascist method to hurry up and pass something only to regret at leisure.
And yeah, I won’t be in Mexiformia forever.

Since its a right enumerated by the federal constitution, the state’s right question shouldn’t enter into it. Congress can set the rules. Besides I live in NY, and don’t mind having the libs here screwed by this.

Absolutely!… if the individual mandate withstands the Supreme Court, conservatives should pass a law mandating gun ownership as a way of maintaining militia preparedness… or be subjected to stiff fines.

Gay marriage proponents may now begin preparing their precedents. “Hey, it’s a right in California, why is it not a right in Alabama?”.

No thanks. Feds stay out.

Matticus Finch on November 16, 2011 at 1:11 PM

Because marriage is not a right specified by the Constitution, making it a States issue. The 2nd Amendment specifies that the right to keep and bear arms IS a Federally protected right.

And if bearing arms is a Constitutionally mandated right, who are the States to decide HOW arms are allowed to be carried (which is a definite infringement on that right)? I don’t think there should be any difference between open and concealed carry. It’s up to the bearer.

The 2nd amendment insures the right of the people to keep and bear arms. The 10th amendment says whatever is not outlined in the constitution falls back on the states. So yes, it is incumbent upon the federal gov’t to enforce our 2nd amendment rights. It is one thing the feds should be doing but doesn’t. It is busy doing things that they are not granted authority to do in the constitution.

For that matter, should Minnesotans have the right to carry in Illinois while the state forbids its own residents to do so, even apart from the question of whether Illinois’ policy is intelligent? (Let’s just stipulate that it’s idiotic, but also that Illinois voters don’t seem to be in a rush to correct it, either.)

IL voters HAVE tried to correct it, but our opinions don’t matter. And apparently neither do the opinions of all 102 county sheriffs that have petitioned Springfield for concealed carry.

I love Illinois, its my home, but I HATE Illinois politics and wish Chicago would wise up.

I dislike the bill for a couple of reasons. First, I believe it’s a State’s Rights issue. Secondly, I am very uncomfortable with the feds getting involved with, directly or indirectly with my carry permit. Sorta like the nose of the camel in the tent!

Everyone arguing the States rights issue is missing the point. The States are already acting unconstitutionally by infringing upon a fundamental right (the 2nd Amendment and the right to bear arms to protect oneself.) Incorporation of the 2nd Amendment as to the States is not Federal overreach. In fact, it is precisely what the Federal Government should do when the States act unconstitutionally, especially when it comes to fundamental, (and) specifically protected rights.

Would we even be having this argument if States were infringing upon free speech. Setting up licensing schemes and arbitrarily allowing cronies to do things that the regular tax paying proles could not ever qualify for? Of course not. Furthermore, No one would argue “let it stand to prevent further overreach down the road in other areas” and vote “with your feet and leave those States for ones that do value the 1st.” It is beyond absurd to pretend there is some difference when it comes to the Second Amendment.

Here’s a conundrum for limited-government conservatives. Should the federal government dictate reciprocity on firearm carry permits to states as part of its authority under the Commerce Clause and the incorporation view of the Second Amendment? Or should states have the sovereignty to decide on reciprocity for carry permits as a function of federalism and states’ rights?

The states do not have a right to restrict the First Amendment, why should they be allowed to restrict the Second? The Tenth is very clear that it only pertains to things not already covered by the other Amendments. Since we have the Second, the states should not have the right to restrict it.

This is very simple; it is a STATE RIGHT & not the Federal Government’s! But since when has any idiot politician ever followed or much less read the constitution or the Federalist Papers for that matter!

CONCEALED is the key word here. OPEN carry should be untouchable nationwide, but it’s not. If their intentions are pure they should fix that first. If the Second Amendment protects anything it should be OPEN carry. I believe the Supreme Court has ruled that CONCEALED carry can indeed be regulated locally. Remember the 55 MPH national speed limit? Do you really want the Feds involved in CONCEALED Carry, in any way, shape, or form? BE CARFULL WHAT YOU WISH FOR.

The 2nd trumps any restrictions that a State may have in regards to bearing arms. However States reserve the right to regulate how the arms might be borne. Some may allow me to conceal carry, or openly while loaded, another might allow me to carry only when unloaded. But none may bar me, as a law abiding citizen from bearing said arms.

Granted, the rules may be confusing from State to State, but unless one encounters a LEO, no harm is done. When the encounter happens, then the LEO should take the time to brief the out-of-stater as to the local regs and let it go.

That’s how it worked back in the 80s when I toted a rifle and shotgun from TX to MI to AK overland and back. Of my handful of encounters (including a speeding warning) only one asked if I was carrying and that was the Canucks at International Falls, MN and only to say that I should keep them unloaded. They didn’t even want to inspect the weapons or ammo.

That’s how it should be. But then again, LEOs back then didn’t run around in battle rattle or seem to be so hard-core and/or a heartbeat away from full-on roid rage.

Good point, our first amendment guarantees free speech everywhere, our second amendment doesn’t guarantee the right to keep and bear arms everywhere?

Which amendment is less vital or less valid than any other?

Speakup on November 16, 2011 at 1:16 PM

It’s been said that the First Amendment is the mouth. The Second Amendment is the teeth.

As for open versus concealed carry…Indiana doesn’t address this in their law at all, making open carry legal for those who choose. Most of us don’t. I hate being stared at. Makes me keep checking my zipper. If you don’t mind and want to open carry, God love ya. I’ll keep my potential barking dog on a leash. Seems to work fine here. Can’t imagine why it wouldn’t work elsewhere.